Answer ... (a) Procedure, including evidence
Arbitrator's Role in Regulating Procedure
Under Art. 1231-2 NCPC, an arbitration tribunal has significant discretion in regulating the procedure of arbitral proceedings. This can be outlined in the arbitration agreement, either directly or by referencing specific arbitration rules or procedural guidelines. In cases where the arbitration agreement does not specify procedural details, the tribunal is empowered to establish the necessary procedural framework. Notably, this discretion allows the arbitrator to deviate from the procedures typical in state courts, offering a more tailored approach to dispute resolution provided that, as per Article 1231-3 NCPC, under all circumstances, the tribunal, ensures equality and adherence to the adversarial principle and equality between parties. This ensures that all parties have a fair opportunity to present their case and respond to the other party's arguments, upholding the integrity and balance of the arbitration process.
Investigative Powers and Handling of Evidence
According to Article 1231-8 NCPC, the arbitral tribunal is authorized to conduct necessary investigations. It can hear any person, including the parties involved, ensuring a comprehensive evaluation of the case. This hearing process is not bound by oath-taking unless a foreign law applicable to the proceedings dictates otherwise. If a party possesses relevant evidence, the tribunal can order its production in a manner deemed appropriate. This grants the arbitrator substantial control over the evidentiary aspects of the case. When a party relies on a document held by a third party, the arbitrator can facilitate its procurement. The party can, upon the arbitrator's request, summon the third party before a supporting judge to obtain or produce the document.
The arbitration tribunal, in this legal framework, wields considerable power over procedural matters and the handling of evidence. This includes the ability to tailor the process to the specifics of the case, ensuring fairness and comprehensive consideration of all relevant materials and testimonies. Such flexibility and authority underscore the effectiveness and efficiency of arbitration as an alternative dispute resolution method, tailored to meet the unique needs of the parties involved while maintaining procedural integrity.
(b) Interim relief?
Understanding the Scope of Arbitrator Powers
Arbitrators' Authority to Order Provisional Measures: under Article 1231-9 NCPC, arbitrators have significant latitude to order parties to undertake provisional or protective measures deemed appropriate. This capacity is a fundamental aspect of an arbitrator's role in ensuring the effectiveness and fairness of the arbitration process.
Conditions and Limitations: it is crucial to note that this authority is subject to certain conditions the arbitral tribunal determines, offering a tailored approach to each case's unique dynamics.
Exclusions - State Court Jurisdiction: importantly, the applicable provision clarifies that the power to order seizures remains exclusively within the jurisdiction of state courts. This distinction ensures a balance between the arbitrator's authority and the traditional powers of state judiciary systems.
Modifications and Adjustments to Interim Measures: arbitrators are not only empowered to order interim measures but also have the flexibility to modify, supplement, suspend, or revoke these measures. This dynamic ability allows arbitrators to respond effectively to evolving case circumstances, ensuring that interim measures remain relevant and fair throughout the arbitration process.
Ensuring Fairness through security for interim measures: a critical aspect of an arbitrator's power is the discretion to require a party requesting an interim measure to provide appropriate security. This requirement is a safeguard, promoting responsibility and mitigating potential misuse of the interim relief process.
Arbitrators in modern commercial arbitration play a pivotal, balanced and, yet dynamic role in managing interim relief measures, characterized by a balance of authority, flexibility, and responsibility. Their powers, as outlined in Article 1231-9 NCPC, reflect a comprehensive approach, ensuring that interim measures are used effectively and judiciously, in alignment with the overarching goal of fair and efficient dispute resolution.
(c) Parties which do not comply with its orders?
Under the guiding principles of Art. 1231-13, an arbitrator is vested with significant authority to ensure compliance with their decisions. This encompasses not only final judgments but also extends to interim or protective measures and measures of inquiry. In instances where parties fail to adhere to the arbitrator's orders, the arbitrator has the discretion to impose penalties. This power is crucial in maintaining the efficacy and integrity of the arbitration process. Primarily, it acts as a deterrent against non-compliance, reinforcing the seriousness and binding nature of the arbitrator's orders. Additionally, it ensures that all parties engage in the arbitration process in good faith, respecting the temporary measures or inquiries that may be pivotal in the resolution of the dispute.
In essence, the authority to levy penalties under Art. 1231-13 is a vital tool in the arbitrator's arsenal. It not only upholds the enforceability of their decisions but also underpins the overall effectiveness and credibility of the arbitration process as a means of dispute resolution. This power must, however, be exercised judiciously and in alignment with the principles of fairness and justice, which are the cornerstones of arbitration.
(d) Issuing partial final awards ?
An arbitration tribunal may issue partial award.
(e) The remedies it can grant in a final award ?
In Luxembourg, public policy is the only exception to the broad scope of relief that can be requested and granted. This matter is considered under the substantive law of Luxembourg, allowing for a wide range of legal remedies without specific restrictions.
(f) Interest?
Within the bounds of the applicable Luxembourg laws, arbitration tribunals enjoy considerable discretion in awarding interest, a freedom that is circumscribed only by specific considerations regarding compounding interest and stringent anti-usury laws. According to Article 1154 of the Luxembourg Civil Code, interest accrued on principal amounts may compound, thereby generating further interest, provided there is either a “judicial” demand or a special agreement that explicitly addresses interest owed for at least one year. Luxembourg's rigorous usury laws, under article 494 of the code Penal meticulously define and penalize only those usurious practices that exploit a borrower's vulnerability through the repeated imposition of unauthorized rates. This precise interpretation ensures that instances of usury are rarely recognized under Luxembourg law, striking a careful balance between the protection of borrowers and the legitimate accrual of interest under specific conditions.